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TMI Blog2014 (3) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... o the service as a Judge of the High Court for the purpose of determining the maximum pension permissible under Part-I of the First Schedule to the High Court Judges (Salaries and Conditions of Service) Act, 1954 (in short 'the HCJ Act'). It was further stated that in respect of Part-III of the First Schedule, which deals with the Judges elevated from the State Judicial Service, almost all the Judges get full pension even if they have worked as a Judge of the High Court for 2 or 3 years and their entire service is added to their service as a Judge of the High Court for computing pension under this Part. For this reason, the members of the subordinate judiciary get more pension than the Judges elevated from the Bar on retirement. 4) In view of the above, the petitioners prayed that though Part-I and Part-III Judges hold equivalent posts, they are not similarly situated in regard to pension and retirement benefits which is breach of Articles 14 and 21 of the Constitution of India and one rank one pension must be the norm in respect of a constitutional office. It is further prayed that the retired Judges of the High Courts should also be given enhanced allowance for domestic help/peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Judges of the High Courts. The provisions under both the Acts were similar prior to the Amendment Act, 2005. Relevant portion of Section 14 of the HCJ Act reads as follows: "14. Pension payable to Judges.- Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part 1 of the First Schedule: Provided that no such pension shall be payable to a Judge Unless a) he has completed not less than twelve years of service for pension; or b) he has attained the age of sixty-two years; or c) his retirement is medically certified to be necessitated by ill-health;" 12) Clause 2 of Part-I to the First Schedule of the said Act deals with the pension for the retired Judges of the High Court, who are directly appointed from the Bar, which reads as under:- "2. Subject to the other provisions of this part, the pension payable to a Judge, to whom this part apply and who has completed not less than 7 years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs. 43,890/- per annum for each completed year of service; (b) for service as any other Judge in any High Court Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the Constitution of India is concerned, it stipulates the manner of appointment of the Judges and provides what may be termed as the qualification required for their appointment. The Constitution contemplates appointment to the High Courts from amongst members of the Bar as well as from amongst the judicial officers. The Constitution does not provide for any specific quota. Till a few years ago in practice 66 2/3% of vacancies were filled from amongst members of the Bar and 33 1/3% from the judicial services. It is only in the Conference of 4-12-1993 of the Chief Ministers and the Chief Justices that it was decided that the number of vacancies from amongst the judicial officers "might go up to 40%". The decision of 4-12-1993, cannot mean that the number of Judges from the services has to be 40%. The normal practice which has been followed was 2/3rds and 1/3rd from amongst members of the Bar and judicial services respectively and it is only on a rare occasion that the Chief Justice of a High Court can propose more Service Judges being appointed if suitable members of the Bar are not available. But this cannot be more than 40% in any case. It may here also be noted that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Act, 2005). However, the benefit of 10 years addition to their service for the purposes of pension is being denied to the Judges of the High court appointed from the Bar, which is arbitrary and violative of Article 14 of the Constitution of India. 19) The Explanation (aa) appended to Article 217(2) of the Constitution of India envisages that, "in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate." The explanation thus treats the experience of an Advocate at the Bar and the period of judicial office held by him at par. 20) The Judges, who are appointed under Article 217(2)(a) being members of the Judicial Service, even if they serve as a Judge of the High Court for only one or two years, get full pension benefits because of the applicability of Rule 26B or because of their earlier entry into judicial service. However, the Judges of the High Court, who are appointed from the Bar do not get similar benefit of full pension, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted for fixation of pension, there is no valid reason as to why the experience at Bar cannot be treated as equivalent for the same purpose. 25) The fixation of higher pension to the Judges drawn from the Subordinate Judiciary who have served for shorter period in contradistinction to Judges drawn from the Bar who have served for longer period with less pension is highly discriminatory and breach of Article 14 of the Constitution. The classification itself is unreasonable without any legally acceptable nexus with the object sought to be achieved. 26) The meager pension for Judges drawn from the Bar and served for less than 12 years on the Bench adversely affects the image of the Judiciary. When pensions are meager because of the shorter service, lawyers who attain distinction in the profession may not, because of this anomaly, accept the office of Judgeship. When capable lawyers do not show inclination towards Judgeship, the quality of justice declines. 27) In most of the States, the Judgeship of the High Court is offered to advocates who are in the age group of 50-55 years, since pre-eminence at the Bar is achieved normally at that age. After remaining at the top for a few year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim and the order of the High Court, in the Conference of Chief Ministers and Chief Justices of the High Courts held on 18.09.2004, the following Resolution was passed: "18. Augmenting of post-retiral benefits of Judges. Xxx xxxxx [vi] As regards post-retiral benefits to the retired Judges of the High Courts, the scheme sanctioned by the State of Andhra Pradesh be adopted and followed in all the States, except where better benefits are already available." 33) It is brought to our notice that in pursuance of the said Resolution, most of the States in the country have extended various post-retiral benefits to the retired Chief Justices and retired Judges of the respective High Courts. By G.O.Ms.No. 28 dated 16.03.2012 issued by Law Department, Government of Andhra Pradesh sanctioned an amount of Rs. 14,000/- per month to the retired Chief Justices of the High Court of Andhra Pradesh and an amount of Rs. 12,000/- per month to the retired Judges of the High Court of Andhra Pradesh for defraying the services of an orderly, driver, security guard etc. and for meeting expenses incurred towards secretarial assistance on contract basis and a residential telephone free of cost with ..... 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